State v. Hemmer
531 N.W.2d 559, 3 Neb. Ct. App. 769, 1995 Neb. App. LEXIS 171 (1995)
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Rule of Law:
A person cannot be convicted of attempting to commit a crime when the underlying offense only requires a mental state of recklessness. An attempt requires the specific intent to bring about the proscribed result, which is logically inconsistent with the unintentional nature of a reckless act.
Facts:
- A Platte County sheriff's deputy attempted to stop Terry L. Hemmer for a speeding violation.
- Hemmer refused to stop, initiating a high-speed chase that involved 8 to 10 officers from four different law enforcement agencies.
- During the pursuit, Hemmer drove through two police roadblocks.
- At one roadblock, the Pierce County sheriff parked his vehicle in Hemmer's path, exited the vehicle, and attempted to flag Hemmer down.
- Hemmer did not stop his vehicle as he approached the sheriff.
- The sheriff was forced to dive into a snowbank to avoid being struck by Hemmer's vehicle.
- Hemmer was apprehended later after his vehicle ran out of fuel.
Procedural Posture:
- Terry L. Hemmer was charged in the district court for Pierce County with attempted assault on an officer in the second degree, alleging he attempted to 'intentionally or recklessly' cause bodily injury.
- Hemmer filed a motion to quash the charge, arguing that it is legally impossible to attempt a reckless act.
- A plea agreement was reached whereby the information was amended to charge only 'attempt to recklessly cause bodily injury ... to a peace officer.'
- Hemmer pled no contest to the amended charge in the district court.
- The district court accepted the plea, found Hemmer guilty, and sentenced him to 9 months' imprisonment.
- Hemmer (appellant) timely appealed his conviction to the Nebraska Court of Appeals (this court).
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Issue:
Does the crime of attempted reckless assault on an officer in the second degree exist under Nebraska law?
Opinions:
Majority - Irwin, Judge
No, the crime of attempted reckless assault on an officer in the second degree does not exist in Nebraska. A criminal attempt requires an intentional mental state, which is fundamentally incompatible with the mental state of recklessness required for the underlying assault charge. The Nebraska attempt statute requires that an actor intentionally engage in conduct intended to culminate in the commission of a crime. By contrast, recklessness is defined as consciously disregarding a substantial and unjustifiable risk, not intending a particular result. Therefore, it is a logical impossibility to intentionally attempt to commit an act defined by its unintentional nature. The court aligns with the Model Penal Code and a majority of other jurisdictions in concluding that attempt liability cannot attach to a crime where the mens rea for the result is recklessness.
Analysis:
This decision establishes a bright-line rule in Nebraska that precludes prosecutors from charging attempt for any crime where the requisite mental state for the result element is recklessness or negligence. It clarifies the scope of inchoate crimes by highlighting the logical inconsistency between the specific intent required for an attempt and the unintentional nature of a reckless act. The ruling forces the state to charge defendants who engage in such behavior with other offenses, such as reckless endangerment, rather than creating a hybrid crime that is legally incoherent. This brings Nebraska's jurisprudence in line with the majority view and the Model Penal Code on this issue.
